STATE OF NEW JERSEY VS. WILAN FERRERAS SANTANA(12-12-2889, ATLANTIC COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1388-15T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WILAN FERRERAS SANTANA,
a/k/a WILAN FERRERAS-SANTANA,
WALIN ROSARIO FERRERA-SANTANA,
WALIN PERRAS-SANTANA, WALIN
R. SANTANA, and WALIN R. FERRERAS,

Defendant-Appellant.

________________________________________________________________

Submitted March 7, 2017 – Decided May 30, 2017

Before Judges Espinosa and Suter.

On appeal from Superior Court of New Jersey,
Law Division, Atlantic County, Indictment No.
12-12-2889.

Joseph E. Krakora, Public Defender, attorney
for appellant (Alan I. Smith, Designated
Counsel, on the brief).

Diane M. Ruberton, Acting Atlantic County
Prosecutor, attorney for respondent (Sevan
Biramian, Special Deputy Attorney
General/Acting Assistant Prosecutor, of
counsel and on the brief).

PER CURIAM
 Defendant appeals from the denial of his petition for post-

conviction relief (PCR) and his post-sentence motion to withdraw

his guilty plea. We affirm.

I.

The charges against defendant were filed after his former

girlfriend reported that he entered her apartment through a

bathroom window while she was sleeping, began to kiss her and,

when she resisted, he assaulted her physically and sexually.

Defendant entered a guilty plea to one count of second-degree

burglary, N.J.S.A. 2C:18-2, pursuant to a plea agreement in which

the State agreed to recommend the imposition of a sentence one

degree lower, of four years subject to the No Early Release Act

(NERA), N.J.S.A. 2C:43-7.2. The plea agreement called for the

dismissal of counts of the indictment that alleged third-degree

aggravated assault, N.J.S.A. 2C:12-1(b)(7), and first-degree

aggravated sexual assault, N.J.S.A. 2C:14-2(a).

At the time defendant entered his guilty plea, he had the

assistance of a Spanish interpreter. The trial judge advised him,

"If you don't understand anything that's going on, let us know and

we'll take the time to make sure that you do." Defendant

responded, "Okay."

The trial judge explained the sentencing consequences of his

plea:

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 Now, you face as a result of your plea and
depending on your record to up to ten years
in state prison, 85 percent of which you could
be ineligible for parole. The State, however,
has agreed to recommend that you be treated
as a third-degree offender with a recommended
sentence of four years in state prison subject
to the No Early Release Act. Anything else
pending against you from these charges would
be dismissed. Is all of that your
understanding of the deal?

Defendant answered, "Yes." The judge also explained the

application of NERA to defendant's specific case:

The No Early Release Act means that you'll
serve 85 percent of the four-year sentence
before you're eligible for parole, which means
approximately three years, four months and 26
days. You'll get credit for any time served.
Do you understand that?

Once again, defendant answered, "Yes." In eliciting a factual

basis for the guilty plea, the judge asked defendant the following

separate questions: (1) if he entered the property of his former

girlfriend unlawfully, (2) if he did so with the purpose to commit

an offense, and (3) if he knowingly or recklessly inflicted bodily

injury upon his former girlfriend during the course of committing

this offense. After defendant answered, "Yes," to each of these

questions, the judge asked an open-ended question, "Tell me what

you did, sir."

Defendant replied:

I went in the house, I went in the home, I
went into the house and had an argument, we

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 fought, we fought. I took her to the hospital
because I saw she wasn't feeling well.

The judge questioned defendant further:

Q. Okay. When you said you fought, that
means that you had some kind of physical
altercation with her in which you struck
her?

A. Yes.

Q. And as a result of which, she suffered
some pain or bruising by hitting her?

A. Yes.

Q. And the offense that you were going to
commit when you entered the property was
this assault, is that correct?

A. Yes.

Defendant further admitted he entered the property without

lawful permission. Before accepting the plea, the judge asked if

he had any questions about his guilty plea. Defendant replied he

had none and confirmed he still wished to plead guilty.

Defendant was sentenced in December 2013 to four years subject

to NERA. He did not file a direct appeal.

In October 2014, defendant filed a motion to vacate his guilty

plea. A certification submitted in support of the motion asserted

he is not fluent in English and that his attorney misled him to

believe he was pleading guilty to "4 flat for a third-degree

burglary" when in fact he was sentenced to four years subject to

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NERA. He stated he would not have accepted the plea bargain if

he had known he would receive a sentence subject to NERA. He

stated further that his misunderstanding was confirmed by other

inmates who advised him that he would receive a "4 flat" sentence

and that he did not learn he was sentenced to a NERA sentence

until he arrived at the Southern State Correctional Facility. The

relief sought by defendant was to be resentenced to a "4 flat" or

to have his conviction reversed so he could negotiate a new plea

bargain.

In May 2015, defendant filed a petition for PCR. He asserted

his trial counsel was ineffective because she represented to him

that the time he would serve would be reduced by "good time" and

"work time" credits; that she used "scare tactics" in advising him

he "would most certainly be found guilty" if he proceeded to trial

and "would receive a much more severe term." Defendant stated he

asked her to move to withdraw his guilty plea on the day of

sentencing and that she stated he would have to pay her at least

another $1000 "to continue representing [him] and to withdraw [his

guilty] plea at this time and proceed with further plea

negotiations." Defendant stated he was unable to pay the

additional fee and "conceded to the plea agreement." He reasserted

that if he had known he would be required to serve 85 percent of

a four-year sentence, he would not have agreed to plead guilty.

5 A-1388-15T1
Defendant was assigned counsel to represent him in his petition

for PCR.

Defendant's motion to vacate his guilty plea and his PCR

petition were heard on the same day. Both the motion and the PCR

petition were denied and the PCR judge set forth his reasons in a

written opinion.

In his appeal from the denial of his petition and motion,

defendant presents the following arguments for our consideration:

POINT I

THE ORDER DENYING POST-CONVICTION
RELIEF SHOULD BE REVERSED AND THE
MATTER REMANDED FOR AN EVIDENTIARY
HEARING BECAUSE, WHEN THE DEFENDANT
ALLEGES THAT TRIAL COUNSEL TOLD HIM
IN AN OFF-THE-RECORD CONFERENCE
THAT HIS 85% NERA CUSTODIAL EXPOSURE
WOULD BE REDUCED BY "WORK CREDITS"
AND "GOOD TIME CREDITS," AND WHEN
THE DEFENDANT ALLEGES THAT IN
ANOTHER OFF-THE-RECORD CONFERENCE
TRIAL COUNSEL TOLD HIM THAT SHE
WOULD NOT FILE A MERITORIOUS PRE-
SENTENCE MOTION TO PERMIT HIM TO
WITHDRAW HIS GUILTY PLEA BECAUSE HE
FAILED TO PAY ADDITIONAL LEGAL FEES,
AND THE STATE DOES NOT FIND IT
APPROPRIATE TO SUBMIT A
CERTIFICATION OR AFFIDAVIT FROM
TRIAL COUNSEL CONTESTING THE
ALLEGATIONS, A PRIMA FACIE SHOWING
OF INEFFECTIVE ASSISTANCE OF
COUNSEL WAS MADE.

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 POINT II

THE COURT'S RULING DENYING POST-
CONVICTION RELIEF VIOLATED
DEFENDANT'S RIGHT TO EFFECTIVE
ASSISTANCE OF COUNSEL AS GUARANTEED
BY THE SIXTH AMENDMENT TO THE UNITED
STATES CONSTITUTION.

POINT III

DEFENDANT'S POST-CONVICTION RELIEF
MOTION TO SET ASIDE HIS GUILTY PLEA
PURSUANT TO STATE V. SLATER SHOULD
HAVE BEEN GRANTED.

We are not persuaded by any of these arguments and affirm.

II.

We first address defendant's appeal from the denial of his

petition for PCR without an evidentiary hearing. The standard for

determining whether counsel's performance was ineffective for

purposes of the Sixth Amendment was formulated in Strickland v.

Washington, 466 U.S. 668, l04 S. Ct. 2052, 80 L. Ed. 2d 674 (1984),

and adopted by our Supreme Court in State v. Fritz, l05 N.J. 42

(l987). In order to prevail on a claim of ineffective assistance

of counsel, defendant must meet the two-prong test of establishing

both that: (l) counsel's performance was deficient and he or she

made errors that were so egregious that counsel was not functioning

effectively as guaranteed by the Sixth Amendment to the United

States Constitution; and (2) the defect in performance prejudiced

defendant's rights to a fair trial such that there exists a

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"reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been different."

Strickland, supra, 466 U.S. at 687, 694, l04 S. Ct. at 2064, 2068,

80 L. Ed. 2d at 693, 698.

Although we must "view the facts in the light most favorable

to a defendant to determine whether a defendant has established a

prima facie claim," State v. Preciose, 129 N.J. 451, 462-63 (1992),

"a petitioner must do more than make bald assertions that he was

denied the effective assistance of counsel." State v. Cummings,

321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199

(1999). If "the defendant's allegations are too vague,

conclusory, or speculative," an evidentiary hearing is not

warranted. State v. Marshall, 148 N.J. 89, 158, cert. denied, 522

U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997).

As the PCR judge found, defendant's claims of ineffective

assistance failed to rise above bald assertions and were refuted

by the record.

The PCR judge discussed each of the grounds advanced for PCR.1

The judge rejected defendant's contention that trial counsel

1
In addition to the grounds asserted in defendant's
certifications, PCR counsel argued trial counsel was ineffective
for failing to advise him of the deportation consequences of his
plea. That argument is unsupported by an affidavit as required
by Rule 3:22-10(c), and, in any case, is not advanced on appeal.

8 A-1388-15T1
failed to advise him of the material terms of the plea agreement

as "a bald assertion, unsupported by the facts in the record." He

included excerpts from the transcripts that showed: defendant was

afforded the assistance of an interpreter; the judge advised him

he should alert the court if he did not understand; the plea forms

were read to him in Spanish and defendant confirmed he could

understand them. The transcript of the plea colloquy also showed

the judge had explained the application of NERA to defendant and

that defendant confirmed he understood. The PCR judge concluded

there was no merit to the arguments regarding defendant's inability

to understand the terms of his plea agreement due to a language

barrier or his allegation he did not understand how NERA affected

the time he would serve.

The PCR judge recited excerpts from the plea hearing in which

defendant stated: he was satisfied with his counsel and the plea

agreement; he admitted his guilt and stated no one had threatened

him to induce him to plead guilty. These excerpts refuted

defendant's contention that trial counsel had coerced him into

pleading guilty.

We note, however, that in rejecting this argument, the PCR judge
stated the deportation consequences were presented in both the
plea form and by the judge.

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 Defendant also argued trial counsel was ineffective because

she demanded an additional fee before she would file a motion to

vacate his guilty plea. Even if we afford defendant's assertion

all favorable inferences, we conclude that argument cannot satisfy

the second prong of the Strickland test because, as we discuss

infra, such a motion was unlikely to succeed.

Because defendant failed to make a prima facie showing of

ineffectiveness of trial counsel under the Strickland test, the

PCR judge correctly concluded an evidentiary hearing was not

warranted. See Preciose, supra, 129 N.J. at 462-63.

III.

We next turn to the denial of defendant's motion to withdraw

his guilty plea, which we review for abuse of discretion. State

v. Mustaro, 411 N.J. Super. 91, 99 (App. Div. 2009).

In State v. Slater, 198 N.J. 145 (2009), the Supreme Court

identified the following factors to be used in evaluating

defendant's motion:

(1) whether the defendant has asserted a
colorable claim of innocence; (2) the nature
and strength of defendant's reasons for
withdrawal; (3) the existence of a plea
bargain; and (4) whether withdrawal would
result in unfair prejudice to the State or
unfair advantage to the accused.

[Id. at 157-58.]

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 The decision to set aside a guilty plea lies within the

court's discretion, which is to be exercised liberally to allow

plea withdrawals before sentencing. Id. at 156. Defendant's

motion was made after sentence and would, ordinarily be subject

to denial unless a manifest injustice would result. R. 3:21-1.

Because defendant has asserted he asked trial counsel to file such

a motion before sentencing, and in light of his PCR petition, we

will apply the more liberal standard to the application of the

Slater factors. We note, however, that "[i]n all cases . . . the

burden rests on the defendant, in the first instance, to present

some plausible basis for his request, and his good faith in

asserting a defense on the merits." Slater, supra, 198 N.J. at 156

(citation and internal quotation marks omitted).

Our review of the PCR judge's written decision reveals he

considered the relevant Slater factors and carefully reviewed the

record to support his findings as to each factor.

His finding that defendant failed to assert a colorable claim

of innocence had ample support in the record, both in the

representations defendant made in the plea colloquy and in the

assertions he made in his motion. Specifically, the PCR judge

noted defendant's argument that he merely entered the apartment

to retrieve his uniform "is not a claim of innocence but rather

an excuse" in light of his admission at the plea hearing he was

11 A-1388-15T1
not permitted in the residence. The judge observed, "[e]ven if

he was permitted to be there, he did not enter through the door

but rather climbed through a bathroom window, an uncommon method

of entry for someone to lawfully enter." Moreover, defendant

admitted he was guilty of the crimes charged.

As to the second Slater factor, the PCR judge found

defendant's stated reason for withdrawing his plea – that he

misunderstood the terms of the plea – was belied by the record.

In reviewing the third Slater factor, the PCR judge noted defendant

had entered a guilty plea to a plea agreement that afforded him a

"substantial benefit" by permitting him "to plead to a second-

degree offense, be sentenced a degree lower, and have all remaining

charges against him dismissed."

In assessing the fourth Slater factor, the PCR judge did not

make any finding that defendant would secure an unfair advantage

or the State would suffer prejudice if defendant was permitted to

withdraw his guilty plea. Instead, the judge found defendant

would not sustain prejudice and that there would be no manifest

injustice in denying his motion. Strictly speaking, defendant's

motion was subject to the "manifest injustice" standard because

it was made after sentencing. R. 3:21-1. Even if we apply the

"interests of justice" standard applicable to motions made at or

before sentencing, R. 3:9-3(e), an application and weighing of the

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Slater factors here reveals no abuse of discretion in the denial

of his motion.

Affirmed.

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